The Strange Career of Commercial Speech
Earl M. Maltz*
I.
INTRODUCTION
The evolution of the constitutional doctrine of commercial
speech' is unique among economic rights. Throughout our constitutional history, conservative justices on the Supreme Court have
been the guardians of expansive reading of the Takings Clause,2
the Contracts Clause,3 and economic substantive due process generally.4 When judicial restraint has been the hallmark of conservative jurisprudence, the scope of these rights has been greatly
diminished.
The course of the development of commercial speech doctrine
has been quite different. The initial impetus for the strong constitutional protection of commercial speech came from the more liberal members of the Burger Court. During this period, the more
conservative justices sought to either limit that protection or exclude regulations of commercial speech from First Amendment'
protection altogether. In the last decade, by contrast, the dynamic
has become more complicated. While voting patterns have not
been entirely uniform, the conservative members of the Court
have become the more vigorous champions of commercial speech.
This article will discuss and analyze the changing dynamic of
the Court's commercial speech jurisprudence. It will begin with a
brief overview of the development of commercial speech doctrine
generally, focusing particularly on the problems associated with
advertisements of socially undesirable products. Using the changing views of Chief Justice William H. Rehnquist as an exemplar,
this article will then examine the evolution of the conservative approach to commercial speech cases. Finally, it will situate the
* Distinguished Professor of Law, Rutgers (Camden). B. A., Northwestern University, 1972; J.D., Harvard, 1975.
1 While the Court has not clearly defined commercial speech, it has noted that an
advertisement for a specific product, motivated by the economic interest of the speaker, is
almost certainly commercial speech. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
67 (1983).
2 U.S. CONST. amend. V.
3 Id. art. 1, § 10, cl. 1.
4 Id. amend. X1V, § 1.
5 Id. amend. I.
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[Vol. 6:161
changing dynamic of commercial speech doctrine in the more general evolution of conservative constitutional jurisprudence.
II.
AN
OVERVIEW OF COMMERCIAL SPEECH
At the time Warren Burger was appointed Chief Justice,6 the
decision in Valentine v. Chrestensen7 was generally viewed as having established the rule that the First Amendment did not impose
any significant restrictions on government regulation of commercial speech.' Indeed, constitutional challenges to such restrictions
often were not conceptualized in First Amendment terms at all.
Williamson v. Lee Optical Co.9 is a classic example from the Warren era.' ° Lee Optical involved a constitutional challenge to a
state prohibition on the advertisement of eyeglass frames." Viewing the claim in substantive due process terms, the Court unanimously rejected the challenge, applying the most lenient version
12
of the rational basis test.
By the mid-1970s, however, two quite different developments
combined to undermine the continued vitality of the Valentine
principles. The first of these developments was a change in the
political climate surrounding limitations on commercial speech.
At the time they were adopted, regulations such as those challenged in Lee Optical were seen as serving the public interest by
enhancing professionalism and preventing inappropriate competition. However, as the twentieth century progressed, regulations
like those in Lee Optical were increasingly viewed as devices by
which special interests shielded themselves from the rigors of the
marketplace, thereby depriving the public of the benefits of
competition.
The second development was doctrinal. During the Warren
era, the liberal justices had developed an increasingly libertarian
view of free speech. 3 In particular, these justices evinced an increasing hostility to the exclusion of specific categories of speech
6 Chief Justice Warren E. Burger was sworn into the Court on June 23, 1969, and
retired on September 26, 1986.
7 316 U.S. 52 (1942).
s Robert E. Riggs, The Burger Court and Individual Rights: Commercial Speech as a
Case Study, 21 SANTA CLARA L. REV. 957, 971 (1981) (surveying the early development of
the law of commercial speech).
9 348 U.S. 483 (1955) (upholding an Oklahoma statute prohibiting the advertising or
sale of eyeglass frames and lenses without a prescription).
lo Chief Justice Earl Warren was sworn into the Court on October 5, 1953, and retired
on June 23, 1969.
11 348 U.S. at 484-85.
12 Id. at 491. Under rational basis review, the challenged classification must be rationally related to a legitimate government purpose. Laws evaluated under this level of
review are presumptively constitutional.
13 See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 292 (1964) (extending constitutional protection to defamatory speech directed at government officials).
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The Strange Careerof Commercial Speech
from First Amendment protections. 4 A blanket exception allowing government regulation of commercial speech ran counter
to this trend.
These themes came together in the watershed decision of Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc. 5 In that case, with only Justice Rehnquist dissenting, the Court invalidated a state statute that prohibited pharmacists from advertising the prices they charged for prescription
drugs. 6 Writing for the Court, Justice Blackmun first observed
that in other contexts, the First Amendment had been held to protect speech that is carried in a form that is sold for profit. 7 The
only question remaining, therefore, was whether purely commercial speech was entitled to First Amendment protection. In concluding that the First Amendment did protect the advertising in
Virginia Pharmacy, Justice Blackmun focused primarily on the
interest of the consumer in receiving product information,
declaring:
So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be
made through numerous private economic decisions. It is a
matter of public interest that those decisions, in the aggregate,
be intelligent and well informed. To this end, the free flow of
commercial information is indispensable.'
He sounded a similar theme in rejecting the claim that the prohibition was necessary to preserve the professionalism of pharmacists and to protect the public from those who would offer inferior
service at low prices:
There is ... an alternative to this highly paternalistic approach.
That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if
only they are well enough informed, and that the best means to
that end is to open the channels of communication rather than
to close them ....
[T]he choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of
suppressing information, and the dangers of its misuse if it is
freely available, that the First Amendment makes for us. 9
Virginia Pharmacy clearly sounded the death knell for the
theory that commercial speech lacked all First Amendment pro14 See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 449 (1969) (holding that a Ku
Klux Klan leader's racist remarks were protected by the First Amendment unless intended
to incite imminent unlawful acts and likely to do so).
15 425 U.S. 748 (1976).
16 Id. at 773.
17 Id. at 761.
18 Id. at 765.
19 Id. at 770.
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tection. However, the majority also suggested that states might
have wider latitude to regulate commercial speech than other
types of communication, specifically noting that states could take
steps to suppress false or misleading commercial advertising."
Four years later, in Central Hudson Gas & Electric Corp. v. Public
Service Commission of New York, 2 ' the Court established a four
prong standard of review for regulations of commercial speech:
For commercial speech to come within [the protection of the
First Amendment] it at least must concern lawful activity and
not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it
22 is not
more extensive than is necessary to serve that interest.
In the wake of Virginia Pharmacy and Central Hudson, the
Burger Court was often sympathetic to First Amendment challenges to restrictions on commercial speech. Posadas de Puerto
Rico Associates v. Tourism Co. of Puerto Rico 23 was a prominent
exception. Posadas involved a dispute over the application of the
Central Hudson test to a Puerto Rican statute that prohibited local casinos from advertising their facilities to residents of Puerto
Rico. 24 A closely-divided Court rejected a First Amendment challenge to this restriction. 25 The majority opinion began by arguing
that the Puerto Rican government had a substantial interest in
limiting demand for gambling among its citizens and that the inhibition on advertising directly served that interest. 26 The majority then rejected claims that the legislature could serve its interest
without restricting speech by either financing a counter-advertising campaign or banning casino gambling altogether. The Court
asserted, "[wie think it is up to the legislature to decide whether
or not.., a 'counterspeech' policy would be as effective in reducing
the demand for casino gambling" 27 and observed that "it is precisely because the government could have enacted a wholesale prohibition of the underlying conduct that it is permissible for the
government to take the less intrusive step of allowing the conduct,
28
but reducing the demand through restrictions on advertising."
Noting that government regulation of socially undesirable prod20
21
Id. at 771.
447 U.S. 557 (1980) (striking down as overly restrictive a state's ban on an electrical utility's promotional advertising).
22 Id. at 566.
23 478 U.S. 328 (1986); see also Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)
(allowing states to limit in-person solicitation by attorneys).
24 Id. at 332-33.
25 Id. at 344.
26 Id. at 341-42.
27 Id. at 344.
28 Id. at 346 (emphasis in original).
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The Strange Careerof Commercial Speech
165
ucts had historically ranged from outright prohibition to restrictions on the stimulation of demand, the Court likened the
regulation in Posadas to limitations on the promotion of alcohol
and tobacco, and concluded that "[t]o rule out the latter, intermediate kind of response [reflected in the restriction on advertising]
29
would require more than we find in the First Amendment."
Posadas was the high water mark of attempts to limit the
scope of the protection for commercial speech in the post-Virginia
Pharmacyera. However, its vitality as precedent proved fleeting.
The process of eroding the authority of Posadas began in 1995,
with the decision in Rubin v. Coors Brewing Co. 3° Rubin was a
challenge to the constitutionality of a provision of the Federal Alcohol Administration Act that prohibited beer labels from displaying alcohol content." A unanimous Supreme Court held that this
provision violated the First Amendment. 32 In defending the statute, the federal government argued that the restriction was justified by the need to prevent beer manufacturers from engaging in
"strength wars"-competition in the beer market on the basis of
the alcoholic content.13 Such a competition, the government reasoned, would lead to an increase in alcoholism and its attendant
social costs. 34 Writing for the Court, Justice Clarence Thomas
conceded that this interest was sufficiently weighty to satisfy the
second prong of the Central Hudson analysis.35 However, noting
that the other aspects of the regulatory scheme allowed, and in
some cases required, manufacturers to indicate the strength of alcoholic beverages, Justice Thomas contended that "the irrationality of this unique and puzzling regulatory framework ensures that
the labeling ban will fail to achieve [the purpose of curtailing
strength wars]. 3 6 He also argued that the government could have
adopted less intrusive means to achieve this goal. 37 Thus, he concluded that the labeling ban failed to satisfy both the third and
fourth prongs of Central Hudson.33
Given that the holding in Rubin was, at least on its face,
based on the idiosyncrasies of the Federal Alcohol Administration
Act,3 9 Justice Thomas did not feel constrained to make more than
4 ° However, the following year,
a passing reference to Posadas.
29
30
31
32
33
34
35
36
37
38
39
40
Id. at 347.
514 U.S. 476 (1995).
Id. at 480-81.
Id. at 491.
Id. at 483.
Id. at 485.
Id.
Id. at 489.
Id. at 491.
Id. at 490-91.
Id. at 491.
Id. at 485.
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Posadas met its demise in 44 Liquormart, Inc. v. Rhode Island.41
44 Liquormartwas a challenge to a pair of Rhode Island statutes
that, taken together, essentially prohibited advertising the prices
of alcoholic beverages.4 2 The state asserted that the limitations
were justified as a means of limiting the demand for alcoholic beverages-an interest that the Court once again conceded was sufficiently weighty to satisfy the second prong of the Central Hudson
analysis.4 3 Against this background, eight justices agreed that the
case was analogous to Posadas. Nonetheless, the justices unanimously held that the Rhode Island statutes were unconstitutional,
44 While disagreeing on the precise standard
overruling Posadas.
of review to be applied to the Rhode Island statutes, all of the justices concluded that the Court should not defer to the state's claim
that its regulations directly furthered the asserted interest and
that the statutes were no more restrictive than necessary to serve
that interest.4 5 Instead, the Court conducted a more searching inquiry and determined that the ban on price advertising unduly
restricted the First Amendment rights of the beer merchants.4 6
In 2001, the principles underlying the decision in 44 Liquormart were reiterated and strengthened in Lorillard Tobacco
Co. v. Reilly.4 7 In Lorillard, the Court was faced with a First
Amendment challenge to Massachusetts regulations that prohibited all outdoor advertising of tobacco products within 1,000 feet of
any school or playground. The statutes also prohibited point of
sale advertising of such products placed lower than five feet from
the ground within that same radius.' The majority conceded that
"'tobacco use, particularly among children and adolescents, poses
perhaps the single most significant threat to public health in the
United States"'4 9 and that there was clear evidence of a link between advertising and an increase in the use of tobacco products
by young people. 50 Thus, the majority concluded that the restrictions on outdoor advertisements at least passed muster under the
third prong of the Central Hudson analysis.5 1 Nonetheless, a
deeply divided Court struck down both regulations, with the majority observing that in some urban areas the regulations would
ban virtually all outdoor advertisements of tobacco products. The
517 U.S. 484 (1996).
Id. at 489.
Id. at 504.
44 Id. at 489, 509-10.
45 Id. at 507, 516.
46 Id. at 507-08, 516.
47 533 U.S. 525 (2001).
48 Id. at 534-35.
49 Id. at 570 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161
(2000)).
50 Id. at 561.
41
42
43
51
Id.
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The Strange Career of Commercial Speech
majority faulted the state Attorney General for failing to make "a
careful calculation of the speech interests involved [in the advertising ban] .,52
III.
THE DYNAMIC OF COMMERCIAL SPEECH JURISPRUDENCE
On one level, the evolution of the law from Virginia Pharmacy
through CentralHudson and Posadasto 44 Liquormart and Lorillard is a fairly prosaic story. When the Court breaks new ground,
as it did in Virginia Pharmacy, it is not unusual for there to be
some hesitancy and even reversal of course before the doctrinal
analysis takes on a firm, lasting structure. In the case of commercial speech doctrine, however, the evolution of the Court's approach was accompanied by a dramatic ideological shift. Initially,
the rejection of the Valentine analysis was a product of liberal constitutional jurisprudence, with conservatives being far more likely
to accept limitations on commercial speech, particularly in cases
involving the regulation of attorney advertising. The conservative
justices have generally remained skeptical of First Amendment
challenges to the regulation of advertising by attorneys.53 More
recently, however, the conservatives on the Court have emerged
as champions of robust protection for commercial speech-not
only in Lorillard, but also in other cases involving advertising 4
and cases challenging the constitutionality of government-mandated contributions for the promotion of specific products.5 5 By
contrast, outside of the area of attorney advertising,5 6 the more
liberal members of the Court now generally oppose the expansion
of protection for commercial speech.
A. The Views of Chief Justice Rehnquist
The changed political dynamic of the Court in commercial
speech cases can be traced through the evolution of Chief Justice
Rehnquist's approach to the issue.5 7 In 1976, then-Justice Rehnquist's views were seen as epitomizing conservative jurisprudence.
5"
He also stood alone in rejecting the result in Virginia Pharmacy.
Analogizing the commercial speech issue to more general
problems of substantive due process, Rehnquist attacked the reaId. at 562.
See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).
See, e.g., Edenfield v. Fane, 507 U.S. 761 (1993) (striking down a state statute
prohibiting in-person solicitation by certified public accountants).
55 See, e.g., United States v. United Foods, Inc., 533 U.S. 405 (2001).
56 See Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) (upholding a Florida bar rule
prohibiting direct solicitation of prospective personal injury clients within thirty days of
their accident).
57 Justice William H. Rehnquist was sworn in on January 7, 1972 as an Associate
Justice of the Supreme Court. He was elevated to Chief Justice on September 26, 1986.
5s 425 U.S. 748, 790 (1976) (Rehnquist, J., dissenting) (citation omitted).
52
53
54
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soning of the majority in language that echoed Oliver Wendell
Holmes' famous statement, "[tlhe 14th Amendment does not enact
Mr. Herbert Spencer's Social Statics":5 9
The Court speaks of the importance in a "predominantly free
enterprise economy" of intelligent and well-informed decisions
as to allocation of resources. While there is again much to be
said for the Court's observation as a matter of desirable public
policy, there is certainly nothing in the United States Constitution which requires the [government] to hew to the teachings of
Adam Smith
in its legislative decisions regulating the pharmacy
60
profession.
Rehnquist's dissents in cases such as Bates v. State Bar of Arizona61 and Central Hudson sounded similar themes. In Bates,
the Court held that the same principle underlying the holding in
VirginiaPharmacy required states to allow attorneys to advertise
their fees for routine legal services.62 The three most conservative
members of the Virginia Pharmacy majority dissented in Bates,6 3
insisting that legal services could not be standardized in the same
manner as pharmaceuticals and that stringent limitations on advertising were justified as a means of preserving the professionalism of lawyers.6 4 Rehnquist, while agreeing with these
observations, went further and reiterated his objections to Virginia Pharmacy asserting that "once the Court took the first step
down the 'slippery slope' in VirginiaPharmacyBoard the possibility of understandable and workable differentiations between protected speech and unprotected speech in the field of advertising
largely evaporated." 65 Dissenting in Central Hudson three years
later, Rehnquist reiterated his view that "the Court unlocked a
Pandora's Box when it 'elevated' commercial speech. . . by according it First Amendment protection in VirginiaPharmacyBoard v.
Virginia Citizens Consumer Counsel."6 6 He found the holding in
Central Hudson particularly offensive, contending that "New
York's order.., is in my view more akin to an economic regulation
to which virtually complete deference should be accorded by this
Court" 67 and that "by labeling economic regulation of business conduct as a restraint on 'free speech,' [the Court has] gone far to
Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
Virginia Pharmacy, 425 U.S. at 783-84 (Rehnquist, J., dissenting) (citation
omitted).
61 433 U.S. 350, 404 (1977) (Rehnquist, J., dissenting).
62 Id. at 384.
63 Chief Justice Burger, Justice Stewart, and Justice Powell.
64 Bates, 433 U.S. at 386-88 (Burger, C.J., concurring in part and dissenting in part);
id. at 389-405 (Powell, J., concurring in part and dissenting in part).
65 Id. at 405 (Rehnquist, J., dissenting in part).
66 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 598
(1980) (Rehnquist, J., dissenting) (citation omitted).
67 Id. at 591.
59
60
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The Strange Career of Commercial Speech
resurrect the discredited doctrine of cases such as Lochner ....
"68
Not surprisingly, Rehnquist was also the author of the majority
69
opinion in Posadas.
However, by 1995, Rehnquist's position had shifted significantly. He joined the majority opinion in Rubin where eight justices applied the Central Hudson test to strike down a federal
statute prohibiting the truthful display of alcoholic content on
beer labels.7° In 44 Liquormart, Rehnquist joined an opinion by
Justice Sandra Day O'Connor-the only other justice remaining
from the Posadas majority-that, like Rubin, rejected the deference shown by the Court in the Posadascase, in favor of Central
Hudson's requirement that the government "show that the speech
restriction directly advances its interest and is narrowly tailored."7 ' O'Connor's opinion in 44 Liquormart concluded that the
state had failed to carry its burden of proof.72 Finally, in 2001,
Rehnquist cast a critical vote in support of the majority opinion in
Lorillard.
Rehnquist's new-found affinity for the protection of commercial speech extends beyond the Rubin/Lorillardline of cases. For
example, in Glickman v. Wileman Bros. & Elliott, Inc.73 and
United States v. United Foods, Inc. 74 he concluded that the government could not compel producers of agricultural products to
pay assessments that funded generic advertising of those products.75 Admittedly, Rehnquist is not as zealous in protecting commercial speech as Justices Scalia and Thomas.76 Nonetheless,
from a jurisprudential perspective, his approach to commercial
speech cases has clearly changed dramatically since 1986.
B.
Commercial Speech and the Evolution of Conservative
Jurisprudence
Chief Justice Rehnquist's changed approach to commercial
speech reflects the evolution of conservative constitutional jurisprudence more generally in the late twentieth century. Even in
1976, at a purely political level, conservatives were more likely to
be strong supporters of property rights and opponents of govern68
Id.
69
478 U.S. 328, 331 (1986).
7o Rubin v. Coors Brewing Co., 514 U.S. 476, 491 (1995).
71 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 532 (1996) (O'Connor, J., concurring in the judgment).
72 Id.
73 521 U.S. 457 (1997).
74 533 U.S. 405 (2001).
75 Glickman, 521 U.S. at 477-78 (Rehnquist, C.J., joining opinion of Souter, J., dissenting); United Foods, 533 U.S. at 416.
76 See Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002) (Rehnquist, C.J., joining
opinion of Breyer, J., dissenting).
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ment regulation of the economy." However, during this period,
conservatives denounced nonoriginalist judicial activism in general as undemocratic and illegitimate, and often argued that the
courts should generally defer to the decisions of other branches of
government. For example, in 1976, Rehnquist himself asserted:
To the extent that [nonoriginalist judicial review] makes possible an individual's persuading one or more appointed federal
judges to impose on other individuals a rule of conduct that the
popularly elected branches of government would not have enacted and the voters have not and would not have embodied in
the Constitution... [it] is genuinely corrosive of the fundamental values of our democratic society.78
Even during the Burger era, Rehnquist and the other more
conservative members of the Supreme Court did not entirely eschew judicial activism. For example, Rehnquist was a leader in
the efforts to revivify both the Contracts Clause 9 and the Takings
Clause ° as significant restrictions on government action. Nonetheless, the philosophy of deference reflected in Rehnquist's early
commercial speech opinions was plainly an important theme not
only of his personal approach to constitutional adjudication, but
also of conservative constitutional jurisprudence generally from
the 1960s through at least the end of the Burger era."1
Conversely, the activism apparent in Rehnquist's current approach to commercial speech mirrors the increasingly activist tone
of conservative jurisprudence that has marked his tenure as Chief
Justice. Indeed, in some respects, commercial speech decisions
are a better measure of the scope of changes in conservative jurisprudence than other, more widely discussed cases. When the
Court is called upon to adjudicate cases that involve core ideological beliefs or have clear political ramifications, even justices with
a strong commitment to judicial deference may find their resolve
weakening. For example, one cannot draw accurate conclusions
about the basic jurisprudential philosophy of the justices of the
Taney Court from their positions in Dred Scott v. Sandford. 2
Similarly, taken alone, the activist posture of the conservative justices in cases such as Bush v. Gore,8 3 the affirmative action cases,84
77 See, e.g., Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 138-53 (1978)
(Rehnquist, J., dissenting).
78 William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 706
(1976).
79 See, e.g., Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978); United
States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1 (1977).
8o See, e.g., Penn Cent., 438 U.S. at 138-53 (Rehnquist, J., dissenting).
81 Justice William H. Rehnquist was sworn in as Chief Justice on September 26, 1986,
replacing Chief Justice Warren E. Burger.
82 60 U.S. (19 How.) 393 (1856).
83 531 U.S. 98 (2000) (per curiam).
84 See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
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The Strange Career of Commercial Speech
171
or the campaign finance cases 5 could be seen as reflecting idiosyncratic political pressures, rather than indicating their wholesale
abandonment of judicial restraint.
The new, aggressive activist position taken by conservative
justices in commercial speech cases stands on a different footing
from the higher profile political cases. To be sure, some of the
commercial speech decisions have important political overtones.
For example, the decision in Lorillardcan plausibly be viewed as
simply a skirmish in the long-running legislative and judicial battle over the regulation of tobacco use and advertising. Even so,
the political stakes in Lorillardwere by no means as high as those
involved in Gore, the affirmative action cases, or the campaign finance decisions. Moreover, it is difficult to conceive of a more prosaic issue than that involved in United Foods, wherein Chief
Justice Rehnquist and Justices Scalia and Thomas formed the
core of the majority concluding that mushroom farmers could not
be required to contribute to a fund for advertising mushrooms.8 6
While the conservatives on the Court were obviously moved by a
general distaste for government coercion of private economic actors, one can hardly imagine a case where the implications for the
political and economic system were less consequential. In short,
the position of the conservative justices in cases such as United
Foods is inconsistent with any meaningful commitment to the concept of judicial restraint.
IV.
CONCLUSION
This account of the evolution of commercial speech doctrine
highlights the changing dynamic of modern constitutional adjudication. This dynamic is substantially different from that which
prevailed for most of the twentieth century, when a significant
number of justices generally embraced judicial restraint as an important value in constitutional analysis. For much of the century,
liberal justices consistently espoused deference to other branches
of government to oppose conservative judicial activism. In the latter part of the twentieth century, by contrast, it was conservatives
who raised the banner of restraint as a response to the jurisprudence of the Warren Court and its successors. While conservative
commitment to restraint was never complete, it nonetheless
clearly influenced the decisions and approaches of some members
of the Court during this period.
85 See, e.g., Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 626-31
(1996) (Kennedy, J., concurring in the judgment and dissenting in part); id. at 631-48
(Thomas, J., concurring in the judgment and dissenting in part); FEC v. Nat'l Conservative
Political Action Comm., 470 U.S. 480 (1985).
86 533 U.S. 405, 413 (2001).
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While both conservatives and liberals continue to accuse each
other of undue judicial activism, it seems clear that arguments
based on restraint have become purely tactical. Thus, in the commercial speech context, the more liberal justices have no problem
voting to strike down virtually all restrictions on attorney advertising," while the conservatives choose to impose stringent limitations on the ability of the states to regulate the advertising of
tobacco."8 The triumph of the activists is thus complete; the only
remaining question is which side will ultimately benefit from a
regime in which the concept of judicial restraint is now viewed as
obsolete. Only one thing is certain: our system of government will
be the loser 8 9
87 See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) (Kennedy, J., dissenting,
joined by Stevens, Souter, and Ginsburg, JJ.) (arguing in favor of allowing attorneys to
solicit accident victims by letter without regard to any thirty day waiting period).
88 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571-72 (2001) (Kennedy, J.,
concurring) (arguing that the CentralHudson test gives "insufficient protection to truthful,
nonmisleading commercial speech"); id. at 572-90 (Thomas, J., concurring in part and concurring in the judgment) (arguing for application of strict scrutiny to government regulation of truthful commercial speech).
89 See EARL M. MALTz, RETHINKING CONSTITUTIONAL LAW: ORIGINALISM, INTERVEN-
TIONISM, AND THE POLITICS OF JUDICIAL REVIEW
views presented in this paper.
(1994) for a more detailed description of the